This is the second article in a two-part series examining the juvenile’s status in the North Carolina criminal justice system. The first article outlined a brief legal history of prosecution and punishment in North Carolina and the United States. This article discusses the 2017 passage of the Juvenile Justice Reinvestment Act and how this law affects North Carolinians and Durham residents alike.

by Kyle Sherard

The advocates were impressive and varied. District court judges and law enforcement, students and professors, district attorneys and public defenders, mothers and fathers, convicted youth, ministers, community organizers, democrats and republicans, and members of all three branches of State government, among many others. For more than a decade, countless individuals worked towards the single goal of “raising the age” of adult criminal prosecution from sixteen to the age of eighteen.

On June 27, 2017, North Carolina passed the Juvenile Justice Reinvestment Act, bringing to an end more than one hundred years of bad law and officially recognizing sixteen and seventeen year olds for what they really are: kids.

Counting to Eighteen

On the surface, the Juvenile Justice Reinvestment Act became law in a smooth 112 days. The Act was first introduced in the House of Representatives on March 8, 2017 as HB 280. It flew through the legislature, gathering speed and support from both political parties, the judiciary and Governor Roy Cooper.

This rapid legislative history was far more nuanced.

The Act’s passage was the culmination of more than a decade of intensive policy work. Passage of this Act followed a report issued by the North Carolina Commission on the Administration of Law and Justice (NCCALJ), an independent commission created in September 2015 by order of Chief Justice Mark Martin of the Supreme Court of North Carolina. The Commission’s report made a number of findings. Among these were the findings that “Raising the age” would reduce the recidivism rates among teen offenders, reduce the financial burden on the state and individual taxpayers, and drastically lower the risk of violent or sexual offenses against juveniles held in county jails and state prisons. The report officially recommended raising the age of adult criminal prosecution to eighteen.

The bill was ultimately inserted into the 2017 State budget and submitted to the Governor for his approval. In spite of his resounding support for the Act, Governor Cooper ultimately vetoed the budget, citing its complete lack of “structural integrity” and its failure “to account for population growth, inflation and looming federal reductions.” The budget also stripped several of the Governor’s administrative powers and presented a separation of powers, creating a constitutional conflict that Cooper refused to enact. Nevertheless, the Senate voted to override the veto mere hours later, rendering “raise the age” into law. Governor Cooper issued a proclamation the next day, naming June 28, 2017 a day “in recognition of raising the age of juvenile jurisdiction.”

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“It’s been a long time coming,” says Representative Marcia Morey, of the NC General Assembly. Morey’s early support for the Raise the Age movement developed in large part from her years serving as an Assistant District Attorney here in Durham and, more recently, from her time on the bench as Durham’s former Chief District Court Judge. She also cast her vote in favor of the bill, just weeks after being appointed to fill a District 30 (Durham) seat for the State House that was left empty after Paul Luebke passed away.

The signature provisions of the Juvenile Justice Reinvestment Act (Act) redefine juvenile delinquency. Under the existing arrangement, any person at least six years old and less than sixteen who commits a crime or infraction under State or local law was tried as a “delinquent juvenile.” The Act expands this definition of juvenile delinquency by including any person “less than eighteen years but at least sixteen.”

In short, the new law “raises the age” of criminal adulthood. If this seems like a simple edit to existing law, that’s because it is. The result has a sweeping impact on North Carolinians, both young and old.

Separately, the Act revises jurisdictional components and creates a number of exceptions to the heightened age of juvenile delinquency. Meaning, the law carves out a subset of crimes that, if committed, mean a juvenile may still be tried as an adult.

Timing is also of critical importance.

The Act goes into effect in three stages. The provisions outlining training protocol for law enforcement were applicable on July 1, 2017, just days after the Act’s passage. This first wave enables the courts and law enforcement to prepare for state-wide changes in the charging and prosecution of youth offenders. The second tier, effective October 1, 2017, addresses victim’s rights and disclosure of juvenile offender records within the judicial and school systems. The changes affecting offender age don’t go into effect until December 1, 2019. These latter modifications form the focus of this article.

Majority Rules

Many a teenager has spent some part of their sixteenth birthday waiting in line at the DMV. But few, if any, were thinking about their simultaneous capacity to enter into the DOC—the adult Department of Corrections.

Under existing law, North Carolinians join the age of criminal majority when they turn sixteen. Most every other State draws the line at eighteen. This means that sixteen and seventeen year olds charged with crimes in North Carolina, no matter how little or seemingly insignificant, face trial and conviction by our criminal courts.

The real-world consequences can be seen in courthouses across the state. On any given weekday, high-schoolers are making their first appearances. The charges run the gamut, from possession of marijuana and shoplifting to simple affray and assault. Many such assaults occur at school, others at home after arguments with parents or siblings turn physical. Some of these individuals are wearing handcuffs, shackles and orange jumpsuits indicative of a night spent in custody. If convicted and sentenced to serve jail or prison time, they join the adult jail or DOC population, where they are disproportionately subjected to abuse and sexual assault by guards and their fellow prisoners.

Meanwhile, individuals fifteen and younger charged with the same crimes are automatically diverted into the State’s Juvenile Justice system. Once in juvenile court, criminal charges and available evidence are assessed by a court counselor. The counselor weighs the gravity of the alleged offense and the teen’s behavioral history to determine the path forward. Violent offenses and serious felonies may result in prosecution and confinement. Unlike their slightly older peers, juveniles who find themselves facing confinement are sent to training schools, treatment facilities and youth development (detention) centers, in lieu of jail or prison. Still, these circumstances are rare and reserved only for the most serious of criminal offenses.

More likely is the scenario where a court counselor refers a teen offender to the county’s community resource center. Once there, a teen and their parents or guardians work through a counseling or therapy program to identify, address and amend behavior that could result in future criminal conduct if left unaddressed. Parental involvement is nearly always a requirement, as is some form of community outreach or service. In other cases, the counselor may find that the offense or incident does not warrant further action, and dismiss the charge all together. The end result is the same: reformation and restoration. The teen is not brought to trial, and is thus spared a conviction and the beginnings of a criminal record.

These same opportunities will soon be extended to all sixteen and seventeen year olds under the Juvenile Justice Reinvestment Act. Raising the age ensures that North Carolina’s juvenile courts will have original jurisdiction over all crimes allegedly committed by these those under eighteen. Put another way, teens charged with criminal offenses will make their first appearance in juvenile court, instead of criminal district court. Ordinarily, the juvenile system retains jurisdiction over a juvenile case until the individual turns eighteen. However, for offenders ages sixteen and seventeen, the Act requires the juvenile courts to retain jurisdiction over a matter for three years or until the action is closed.

“If you send a sixteen or seventeen year old to prison for armed robbery,” says Morey, “they’re eventually going to come back out into the same environment they left.” This creates the risk of recidivism. Adding sixteen and seventeen year olds to the juvenile justice system expands the court’s power to effect change in a way far more meaningful than prison, jail or probation.

What’s more, the juvenile system involves active participation by more than just the the defendant and attorneys. “The more you can work with a child, the better in the log run,” Morey notes, adding, “and working with juveniles means working with families.” Parents are required to come to court, and can even be held in contempt for failing to be present and participate. The process ensures all parties involved hold each other accountable. This reduces the likelihood of a second offense.

The Act also has a clear, albeit indirect psychological component. It’s not uncommon for sixteen-year-olds to appear in Durham Criminal District Court with their parents standing beside or behind them. They look like children. On occasion they’re even spoken to like children, with the judges addressing the parents from time to time. But the law ultimately views and treats them as adults. By raising the age to eighteen, the Act effectively brings the judicial perception of what a child is into clearer view.

“Once they get the label of adult from around their neck, even the harshest judges around here will be more considerate of their rights,” says Lawrence Campbell, Durham County’s Public Defender. “Until that day, they remain subject to adult treatment and punishment.”

On a more basic level, Campbell notes that raising the age recognizes that teenagers screw up from time to time, and that they shouldn’t be labeled a criminal after their first time getting in trouble. “These changes,” Campbell says, “avoid many of the unnecessary collateral consequences that sixteen and seventeen year olds may find themselves with, and having to suffer through for the rest of their lives, simply because they made a youthful mistake.”

Durham Foundations

According to Morey, some of the most important foundational work was initiated on the local level, particularly so in Durham, which was among the first counties to take an early lead on age reform.

As Chief District Judge, Morey helped create the Misdemeanor Diversion Program for sixteen and seventeen year olds. The diversion program is an alternative system created to keep juveniles out of criminal court. The program is available to first-time offenders charged with any misdemeanors, excluding traffic matters, firearm charges and sex offenses.

The program is operated on a referral system, says Kelly Andrews, program director for Durham County’s Misdemeanor Diversion Program. An officer refers an individuals presently facing a criminal charge is they have a clean background. The program requires participants to complete a community-focused program tailored to the offender and specific offense. The participant is also required to attend a misdemeanor diversion court session, wherein the teens meet with a judge, a public defender, and an assistant district attorney to discuss the ramifications of a criminal record. Once the program is complete, a teen offender’s file is closed, leaving them with a clean record.

Since the program was implemented in January 2014, hundreds of sixteen and seventeen year olds have avoided criminal prosecution. This success generated an extension. The diversion program for eighteen to twenty-one year olds. program director for Durham County’s Misdemeanor Diversion Program. To date, 444 out of 449 individuals have successfully completed the diversionary program. Anderson notes that the program has more than 99% completion rate.

After the Act kicks in, sixteen and seventeen year olds will begin appearing in juvenile court. The program will still accept diversion referrals for eighteen to twenty-one year olds, and possibly others in the near future. “We’re hopeful we can do something to expand the program,” Anders says, “whether that means upping the age of those we’ll take in, or beginning to take on specific charges.”

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Chief among these collateral consequences is the creation of a criminal record. “Charges are the real poison,” says Morey. Even if the charges filed against an individual are dismissed, the charge itself remains on their criminal history. This ghost of a charge can cause problems later on, particularly when a person applies for school or seeks employment. Now, under the Act, teens charged with misdemeanor offenses can avoid the creation of a criminal profile through diversion into the juvenile courts (See Durham FoundationsSidebar).

Exceptions A through G, et al.

The Act’s age provisions do not provide absolute access to the juvenile courts. For instance, the Act requires that teens be charged as adults for all motor vehicle violations. The law’s most consequential exception requires the optional and, in limited circumstances, mandatory transfer of teens from juvenile into superior court, where they are tried as adults.

The exceptions apply to two distinct groups of felonies under North Carolina’s structured sentencing guidelines: (1) Class A through G and (2) Class H and I felonies. Class A through G felonies encompass murder, arson, rape, burglary, robbery and manslaughter, among other violent felonies. Class H and I felonies include an array of assaults, drug and property crimes.

The new law requires that all teens thirteen to seventeen years old who are charged with a felony will first appear in juvenile court. Depending on the age of the juvenile, Class A through G felonies trigger the mandatory transfer process, while Class H and I felonies permit optional transfer. In either case, certain procedural safeguards are in place to prevent the needless or frivolous transfer of a teen into adult court.

For thirteen, fourteen, and fifteen year olds charged with any felony, the State may transfer the juvenile to superior court. To do so, the State must conduct a transfer hearing to determine if there is cause to transfer the youth into adult criminal court. Any teen in this age bracket who is charged with a Class A felony is automatically transferred upon a finding of probable cause.

There is a mandatory transfer for sixteen and seventeen year olds charged in the Class A through G felony range. Transfer is effective (1) after the State files and gives notice to the teen of the teen’s indictment in superior court or (2) after a probable cause hearing. The filing of an indictment is within the discretion of the district attorney’s office. If the office should choose to transfer without indictment, the State must first conduct a probable cause hearing to determine whether there is enough evidence to continue with the offense as-charged. If probable cause is found, the Act requires the mandatory transfer to superior court for trial.

In the case with Class H and I felonies, the State may seek to transfer a juvenile. If transfer for a sixteen or seventeen year old charged in this range is pursued, the State must (1) give notice of intent to transfer, (2) conduct a probable cause hearing, and (3) conduct a subsequent transfer hearing. Only upon these findings can the teen be transferred into superior court.

In either scenario, once a teen is transferred into superior court, they are again treated and tried as adults.

Discretion in Stages

“Discretion is an integral part of this reform, beginning with the police officers and the sheriff’s department,” says Morey.

The State’s discretion to charge and pursue charges underlines the Act’s goal of keeping teens in the juvenile courts. Law enforcement is typically the first arm of the State to initiate the criminal justice process. A ticketing or arresting officer assesses the evidence before them and charges the individual with the appropriate crime. As such, officers have the discretion over whether to charge juveniles with misdemeanor instead of felonies.

After an individual is charged, the District Attorney’s office determines whether to move forward with the case as-charged, or to elevate or decrease the charge’s severity. The level of the final charge ultimately dictates whether a teen’s case is subject to mandatory transfer. Even under the Act’s transfer provisions, the State’s district attorneys retain wide latitude to lower charges below the range of mandatory transfer.

“Ideally,” Morey says, “I would have liked to see [the Act] keep all kids under eighteen in the juvenile system, regardless of the offense.” However, the Act was the culmination of years of policy research and agency compromise. For instance, the State Conference of District Attorney’s refused to support the measure unless they retained the ability to try certain offenses in adult criminal court. The final law included the mandatory transfer provisions.

The compromise arose out of county-by-county differences, according to Durham County District Attorney Roger Echols. Some counties have more problems with guns, others drugs, and still others property offenses. “You can’t tailor such a law to address county-by-county differences,” says Echols, adding, “so instead, the Conference requested discretion over the ability to pursue certain charges.”

Unfortunately, this discretion favors the ability to elevate charges more than it does the results obtained by lowering. Meaning, a District Attorney (DA) can elevate a teen’s misdemeanor larceny charge into the felony range, then conduct the proper hearings and transfer a teen into superior court to be tried as an adult. DAs can also lower charges. However, there will be instances where the teen remains in the mandatory transfer range, despite a reduction in a criminal charge’s severity. In other words, the Act provides DAs broad power to bring a teen into superior court, while curbing their ability to keep them out.

Echols was one of only a handful of DAs to take issue with the Act’s mandatory transfer provisions.

“We don’t have a strict policy that says, if someone is sixteen or seventeen years old and they commit this certain offense, then we will do ‘this’ or we won’t do ‘that,’” Echols said of his office. “But the fact that they are sixteen or seventeen years old is a fact that we take into account when deciding what we will do.”

First offenses by teen for drugs possession, property offenses that don’t involve a lot of money, or residential break-ins are among those offenses that Echols’s office handles with particular care. More often than not, these charges result in the individual being placed into a diversion program or given a “90-96” option. In some situations, a teen may be charged with a high level felony, but still placed in the juvenile courts. This, according to Echols, is no more than a basic human recognition that teen offenders are still just kids—kids who can change course.

Therein lies the problem. The Act removes Echols’s ability to parse out prosecution in this manner.

“There will be times when there are Class F or G felonies, or even E and maybe D as well, where, quite frankly, I don’t think that it’s appropriate for them to go to prison,” he says. “If you put them through the juvenile system, they would stand a better chance of coming out better on the other side than if you put them through probation on the adult side.”

Beginning in December 2019, Echols will be unable to keep a teen charged with a Class F or G felony in juvenile court. The law is clear. Once the felony charge is settled, there is no option to keep the teen in juvenile court. They must be transferred.

December 1, 2019

The Act doesn’t go into full effect for almost two more years, leaving Echols and other DAs, public defenders and private defense attorneys uncertain as to the full extent of the discretion and protections the law affords. “How it will affect this office and counties across the state will depend on what the volume will be,” Echols says.

“Until that day,” he adds, “we will continue to be pretty aggressive in giving deferred prosecutions to young people.”

The December 2019 effect date was created in part to give the various state agencies and branches time to amend their current systems to accommodate the shift. Youth detention facilities will need to be expanded or built anew in order to house the influx of teens. The NC judicial districts will also need to expand their resources and hire court aids and community counselors. Similarly, public defenders’ offices will need to hire additional juvenile attorneys, assuming they have one to begin with.

While the State prepares, the delay leaves thousands of teens exposed to adult prosecution. According to Campbell, there’s only one thing teens can do until the State finally recognizes them as juvenile: “Your day is coming, stay out of trouble.”

Disclosure: At the time this piece was written and the parties interviewed, the author was working as a student-extern in the Office of the Durham County Public Defender.